Washington Township mansion owners face demolition deadline

By Jameson Cook

Thursday, January 31, 2013

A more than eight-year court battle over a Washington Township mansion being built too close to its neighbor may result in a partial or full demolition of the house by July if a settlement isn't reached.

The state Supreme Court on Friday rejected the mansion owners' "Hail Mary" attempt when it turned down reconsideration of its prior decision to refuse to hear the case. The decision endorses the July 1 deadline for the home to be brought into compliance, set last month by Macomb County Circuit Judge Matthew Switalski.

The $1.1 million, 9,000-square-foot home is owned by businessman Simon Palushaj and his wife, Saca, who built it despite being told by their next-door neighbors, Gerald and Aileen Thom, in 2004 that it violated setback requirements in deed restrictions of Lockwood Hills Homeowners Association. The Thoms sued in August 2004, and the Palushajes have lost after many court decisions.

"He's exhausted all appeals and all avenues of relief. Now he has to abide by the order," Thomas Kalas, attorney for Aileen Thom, said of Simon Palushaj. Gerald Thom died last October at age 73.

The Palushajes' attorney, Joseph Viviano, declined to comment.

Tony Viviano (no relation to Joseph Viviano), who resides in the subdivision, said he hopes the "magnificent" home is not razed.

"It would be a terrible thing," said Tony Viviano, who owns Sterling Heights Dodge. "I drive by it at least twice a day. The place looks really great. I don't see where it is bothering anybody. It raises the value of the block."

A trial judge noted the Palushaj home is "barely visible" from the Thom home; only a windowless wall faces the Palushaj home.

Aileen Thom testified during one of two trials, "a rule is a rule," and that she suffered due to the lack of open space.

The Palushajes said that by the time they learned of the violations, they had already invested a large sum of money in the architectural drawings and initial construction costs. The construction complied with township setbacks.

The home was built 80 feet from the Thoms' home instead of 100 feet, and 28 feet from the side property line instead of 40 feet, according to the deed standards.

Attorney Viviano has argued for many years that demolition is an excessive resolution since it would be a hardship and extremely expensive. The home includes an elevator for one of the Palushajes' six children who has "severe cerebral palsy" and requires around-the-clock care, he noted in a court document.

The Palushajes have offered to settle the case monetarily and/or by purchasing the Thom home, about one-third the size and value of the Palushaj home, at an inflated value.

The Thoms have spent more than $220,000 in attorney and legal fees on the case.

Kalas would not rule out a possible settlement.

"His attorney could present a proposal, and we would evaluate it," Kalas said. "I would think that now he would want to resolve this to salvage his home."

Kalas said previously the Thoms would want attorney fees plus an additional amount.

"It has taken a toll on their (the Thoms') finances and emotional health," he said last year.

Macomb County Judge James Biernat Sr. now retired, in late 2010 ordered the Palushajes to pay $184,000 in costs and legal fees to the Thoms, and the Palushajes to maintain $40,000 worth of landscaping as a buffer between the two homes. But the Thoms won an appeal. The appeals panel said Biernat should have issued an injunction to correct the violation, not "balanced the equities."

Kalas said the Supreme Court didn't take the case because deed restrictions were long ago determined to be enforceable in court.